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Mobile Devices, Technology Companies and Law Enforcement - Part 1

Earlier this year Apple challenged a court order requiring it to help the FBI unlock the iPhone of the San Bernardino assailant. Apple resisted, arguing that complying with the request had the potential to broadly compromise iPhone security. The FBI discontinued its case against Apple after a third party was able to hack into the iPhone’s older operating system.

A similar legal conflict just ended between Apple and the US government over a different model iPhone in New York. In that case Apple attempted to use the court proceedings to force the government to turn over details of how they hacked into the first iPhone. Their argument was that the government failed to show that intervention is necessary as there are apparently alternate means of accessing the iPhone’s content. Apple could use the details of the hack to patch weakness in the security of its devices in the future. This matter ended when the government advised the court that they obtained access to the device using a passcode.

The extent to which tech companies should comply with government access requests is still subject to debate The battle between the state and technology companies is far from over. In the US, a bill has been drafted by the U.S. Senate proposing that companies must provide data in an intelligible format on receipt of a court order. Whether this proceeds beyond a draft, and whether public opinion influences the process, will be of interest to privacy advocates.

The security by surveillance vs. privacy by encryption battle has cast Apple as the good guys, trying to protect our privacy from the prying eyes of the US government. Their marketing department must be very proud. We have seen other tech companies riding the wave of support for device privacy: WhatsApp increased its encryption program, and received very positive media attention for doing so. In Canada, there is some information to suggest that Blackberry was more receptive to government access requests. We will look at whether this type of capitulation will be lauded or lampooned in Part 2 of this blog.

Compare jurisdictions: BYOD: Bring Your Own Device

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